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Pora v Commissioner of Police [1997] PGNC 58; N1569 (9 May 1997)

Unreported National Court Decisions

N1569

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 218 OF 1996
BETWEEN
PAUL PORA - Applicant
And
THE COMMISSIONER OF POLICE - Respondent

Mount Hagen

Injia J
12 February 1997
9 May 1997

ADMINISTRATIVE LAW - Judicial Review of Disciplinary authority’s decision to dismiss policeman - Grounds of review - Excessiveness of punishment - Nature of Court’s discretion - Nature of Relief sought - Re-instatement and payment of lost salary entitlements - Nature of Court’s discretion to grant the additional relief in the form of lost salary entitlements consequent upon an order for re-instatement - National Court Rules, Order 16 r. 4 (1).

Cases Cited:

Dicky Nanan v Police Commissioner & Anor Unreported National Court Judgment N 1507 (1996)

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122

Counsel:

DL O’Connor for the Applicant

J Kumura for the Respondent

9 May 1997

INJIA J: The Applicant is seeking judicial review of his dismissal from the Police Force by the Respondent on disciplinary grounds pursuant to the provisions of the Police Force Act (Ch. No. 65). Leave tk judicial review wiew was sought pursuant to Order 16 of the National Court Rules and granted by the Court.

There are two grounds of review as set out i statement filed in support of the application for leave.&#ve. are:

(i) &#160 ـn The pene penalty applied by the Commissioner was excessive.

(ii) & The decision of the CommiCommissioner was cry toral je in that the Commissioner:

(a) #160;&#160 &##160; Failed to proo provideovide the Plaintiff with copies of any evi subsatingcharge.

(b

(b)&#16) ; Failed to protide the Appe Applicant with an opportunity to cross-examine witnesses provievidence in support of the the charge.

(c) & Failed iled to provide the Applicant with an opportunity to address the Commissioner on penalty.

(d) ټ F iledroo provide aide any reasons for his decision.

(e) 0;; Froviprovideovide thde thde the Appe Applicant with an independent authority to deal with the matter.

The following facts appear not to be in dispute0; Thlicant comes from Langa village just outside Moun Mount Hagt Hagen town. He is married with sevchil children. He joined the PoForce in 1 in 1986 and served in various locations throughout the country as a member of the Police Mobile Force. In he wansfeto Mount Hage Hagen from Porgera, Enga ProviProvince. Apparentle Police Depe Depe Department could not provide him accommon in Mount Hagen so he had to stay in his village and come to work in Mount Hagen everyday yday by PMV transport. In October 19e wased for dfor duty on Boon Bougainville. Upon his return from dutBoon Bougainville in April 1995, he never returned for dutyl 28 August 1995. Consequently, his ce from from duty was treated by the Police DeparDepartment as AWOL (absent without leave).; The Applicant gave his reis reasons for AWOL as being lack of married accommodation and inability of the Police Department to pick him up from his village in the police vehicle. The Police Depar did not anot accept his explanation. On 28 August 1995, the Apnlicant was suspended from duty with 50% reduction in pay for 21 days. This followed serious diiniplinary charges beiid un. 43 (a) of the Pthe Police Force Act. The charge reads “On 22/5/95 - 28/8/95, /95, you committed a breach of the Police Act (Ch. 65) in that you absented yourself from duty withowithout authorised leave contrary to the provisions of Section 26 (1) of tlice Force Regulations (Ch. (Ch. 65)” thereby contravenin43 (a) (a) of the Police Force Act (Ch. 65). On 29 August, theicant rept replied to the charge in writing. The pertinent parthis expl explanation are reproduced below:

Rbject0; &##10; RE0; REASON FOR ABSNNT OY

Sir,

1. #1660; As thee ref woild lo exto exto explain the reason why I was absent from duty.

2.
a0; H transferred from Prom Porger joinhe Moin 1990 I come to work on PMV paying a ng a fare fare of K1of K1.00 a.00 a day.

3. ҈& A60; Applicaplication for aied hwas fded twice but I wt I was noas not givt given one.

4. As para two (f) re Irs,ve have paid bus fare of0 a dr fiv years.ears.&#160 That amount lot of money tney that that cannot be reimbursed by the Department. If squad vehicles can pp memat Haech and Kagamuga, I see no e no reasoreason why I don’t get picked up.

5. &##160; &160; As ara.e (3) refersonRn’t know what criteria is used in issuing married hoed houses but having married before joining the Force in 1986 with three (ds onngth l that I deserve a house. Members who joinejoined thed thed the Force after me and got married later were given married houses.

6. &#A60; m roothet ingls barr barracks was given to me by Sgt. RAVA but while I was on operations in Buka it was given to another member. If I still ha room I wouldwould sleep in the barracks and come to work.

7. Becausthof prselemsbI jusI just gave up hope of coming to work.

8. ټ&##160; T60; That isat is all I to s8221;

Itppareom pa above that the Applicant admitted the ofhe offencefence.&#16. Th0; Therefore, ire, it isit is not open in this review for the cant ly on any groundsounds whic which question the finding of guilt. As econd ground of review view (ground ii) just does that, I ds that ground. Even iven if I am wro dism dismissing this ground for this reason, I think the grounds particularised under the 0;natural justice” he1; heading are not available to the Applicant either under the principles of the common law or by under provisions of S. 46 of the Police Force Act: see Dicky Nanan v PoCommisommissioner & Anor N dated 10th February, 199, 1997 per INJIA, J.

On the question of excessiveness of punishment, the Court should not interfere with the punishment unle is sied that the trib tribunal or disciplinary authority abusedbused its powers or where the punishment is such that no reasonable tribunal or authority would have imposed the punishment in the light of all the circumstances of the offence: Kekedo v Burns PhiNG) Ltd Ltd [1988-89] PNGLR 122 at p. 124.

This is a case where a member of the disciplinary force with a good record ofoyment spreading over 10 years was dismissed outright for failing to turn up for work due tdue to circumstances partly created by his employer. Yet this is theicant’#8217;s first disciplinary offence. For this, he wasady penalienalised with a suspension with 1/2 (half) pay only for 21 days. The officer-in-chargDiscipiscipline matters at Police Headquarters, Insp. J. Waecommended to the Respondent a penalty of the maximum monetmonetary fine as an appropriate penalty or one (1) months pay. The Rdent to dismiss the the Athe Applicant. No reasons are available before me as to why he preferred to reject the recommendatioInsp. Waira. It is in Respondent&#82diss discretion to accept or reject the recommendmmendation of his sub-ordinate but he shouve given reasons to justifystify his decision to dismiss. I consider no reasonable dble disciplinary authority could have imposed the punishment in the circumstances. In the circumstances, I am satisfied that an appropriate punishment should have been a ary fine. I thereforeefore quash the penalty of dismissal and in lieu thereof, impose a forfeiture of one (1) month’s pay0; I also order that the Aphe Applicant be re-instated to the Police Force forthwith.

In considering whether the Applicant should be re-instated with full pay back-dated to 23 April 1993 as an additional relief, that is a matter in the discretion of the Court. The Court may refuse to sant such relief where “in the opinion of the Court, the granting of the relief sought would be...detrimental to good administration”: National Court Rules, Order 16 r. 4 (1). Iniew, it would not be in e in the interest of good administration of the Police Force to accord a member against whom a disciplinary conviction is sustained on tounds of failing to turn up for duty for a considerable pere period, in this case three (3) months, to be paid his full salary and other service entitlements lost whilst waiting for judicial review of his dismissal. To allo to re-coup such ench entitlements is to pay him for work he has not performed. Also, equitableciples mili militate against such payments in these circumss.

On the question of costs, because the issues of g of guilt and punishment are equally split between the parties, I order thch party bear their own cosn costs.

Lawyer for the Applicant: DL O’Connor Lawyers

Lawyer for the Respondent: Solicitor General